Citation Nr: 0420619
Decision Date: 07/28/04 Archive Date: 08/04/04
DOCKET NO. 00-21 903 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for a bilateral knee
disorder.
3. Entitlement to service connection for a back disorder.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. W. Kreindler, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1974 to June
1977.
This matter came to the Board of Veterans' Appeals (Board)
from a November 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. The matter was previously Remanded by the Board in
May 2003 for further development as to the issues of the knee
and back, and to issue a Statement of the Case regarding
entitlement to service connection for hypertension, as
mandated by Manlincon v. West, 12 Vet. App. 238, 240-241
(1999).
The issues on appeal are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required on his part.
REMAND
In the Substantive Appeal (VA-9) submitted by the veteran in
December 2003 as to the issue of entitlement to service
connection for hypertension, he requested a Board hearing at
the RO. In January 2004, the RO issued a letter to the
veteran requesting clarification as to whether he desired a
videoconference hearing, or a travel Board hearing; however,
the veteran did not reply. The RO should attempt to clarify
whether the veteran still desires a hearing as to the issue
of entitlement to service connection for hypertension.
At the travel Board hearing held in January 2003 regarding
the issues of service connection for a bilateral knee
disorder and a back disorder, the veteran indicated that
post-service he received chiropractic treatment from W.W.
Slater of Jasper, Texas. Although the veteran claims that
Dr. Slater is deceased, the RO should contact the veteran and
obtain from him further information regarding Dr. Slater
including his last known address and dates of treatment, and
make any and all attempts to obtain the treatment records.
The veteran also stated that he received post-service
treatment from Dr. Jorgenson. Although the veteran has
provided copies of treatment records from Dr. Jorgenson, the
RO should request from Dr. Jorgenson the entirety of the
veteran's treatment records. Finally, the veteran also
indicated that he received post-service chiropractic
treatment from other providers. The RO should obtain from
the veteran the names, addresses, and dates of treatment for
any other chiropractic providers, or any other post-service
medical providers. The veteran is advised that he has an
obligation to cooperate fully with VA's efforts to obtain the
medical records. 38 C.F.R. § 3.159(c)(1)(i), (ii) (2003).
Additionally, in a statement submitted by the veteran in
August 2003, the veteran stated that a doctor told him that
his reported accident in service could have caused his
injuries. The veteran stated further that he asked the
doctor to put the opinion in writing, but the doctor stated
that he did not want to unless requested to by the RO. The
RO should obtain from the veteran the name of the doctor that
provided this opinion, and the RO should request that this
doctor provide a written opinion regarding the etiology of
the veteran's bilateral knee disorder and/or back disorder,
including whether the disorders were incurred in or related
to any incidents in service.
Finally, the Board also notes that the veteran was afforded a
VA examination in November 2003. The examiner was to provide
an opinion regarding the etiology of the veteran's claimed
knee and back disorders. Although the examiner performed an
examination and provided an opinion, the opinion was not
proffered using the standard invoked by VA - whether it is at
least as likely as not that the veteran's claimed disorder is
related to service. Consequently, the RO should obtain a VA
opinion regarding the veteran's claimed knee and back
disorders. This opinion should include a thorough review of
the veteran's claims folder, including the history provided
by the veteran in statements and previous VA examinations.
To render this opinion, it is not necessary that the veteran
be physically examined.
Accordingly, this case is REMANDED to the RO for the
following action:
1. The RO should review the record and
send an appropriate letter to the veteran
to ensure compliance with all notice and
assistance requirements set forth in the
VCAA and its implementing regulations.
2. The RO should clarify whether the
veteran desires a hearing regarding the
issue of entitlement to service
connection for hypertension.
3. The RO should contact the veteran
and obtain from him the name, address,
and dates of treatment for all medical
providers who treated him since
separation from service. The RO
should, then, take all necessary steps
to obtain any treatment records
specifically identified by the veteran,
including those from Dr. Slater and Dr.
Jorgenson. If such efforts prove
unsuccessful, documentation to that
effect should be added to the claims
file.
4. The RO should contact the veteran
and obtain from him the name and
address of the medical provider whom he
claims previously rendered a verbal
opinion regarding the etiology of the
veteran's claimed knee and back
disorders. The RO should, then,
request a written medical opinion from
the identified medical provider. If
possible, the opinion should include a
discussion of the etiology of the
disorders. All opinions and
conclusions expressed must be supported
by a complete rationale in a report.
5. The RO should forward the entirety
of the veteran's claims folder and
medical records to an examiner to
render an opinion regarding the
etiology of the veteran's bilateral
knee disorder. The examiner should
review the entire claims file and
provide an opinion as to whether it is
at least as likely as not that the
veteran's right and/or left knee
disorder is etiologically related to
service or was aggravated therein. If
an opinion cannot be expressed without
resort to speculation, the examiner
should so indicate. All opinions and
conclusions expressed must be supported
by a complete rationale in a report.
6. The RO should forward the entirety
of the veteran's claims folder and
medical records to an examiner to
render an opinion regarding the
etiology of the veteran's back
disorder. The examiner should review
the entire claims file and provide an
opinion as to whether it is at least as
likely as not that the veteran's back
disorder is etiologically related to
service or was aggravated therein. The
examiner should specifically address
the service medical records in which
the back is referenced. If an opinion
cannot be expressed without resort to
speculation, the examiner should so
indicate. All opinions and conclusions
expressed must be supported by a
complete rationale in a report.
7. The RO should, then, readjudicate
the veteran's claims of service
connection for hypertension, bilateral
knee disorder, and back disorder. If
the determination of these claims
remain unfavorable to the veteran, the
RO must issue a Supplemental Statement
of the Case and provide him a
reasonable period of time in which to
respond before this case is returned to
the Board.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).